Three years after recognizing a new cause of action for racial redistricting in Shaw v. Reno,(1) the Supreme Court's voting rights jurisprudence still teeters on the brink of legal incoherence and political chaos. Concerned about the new extremes to which self-interested redistricting has been taken in the 1990s--particularly, but not exclusively, for racial purposes--the Court has been struggling to articulate legal principles that might fix acceptable boundaries on the power of politicians to define their constituencies.(2) But last Term's unsurprising decisions striking down districts in North Carolina and Texas,(3) like the previous Term's decision invalidating a Georgia congressional district,(4) suggest that these principles remain disturbingly elusive.(5) To be sure, some speculations have been publicly confirmed, most notably that the five-member majority crafting these new constitutional constraints is itself profoundly fragmented.(6) Yet the precise extent to which election districts can be designed to take race or ethnicity into account remains shrouded in a doctrinal framework that provides scant practical guidance in the most charged setting of all for identity and partisan politics.
The relationship of race to the construction of political institutions is a prominent site in which themes of "Group Conflict and the Constitution," the topic of this Symposium, are currently being played out. In the redistricting arena, the Court now appears to have settled on a doctrinal formula through which it will mediate this particular form of group conflict. In each of the last two Term's cases, the Court has consistently rehearsed this doctrinal principle: Race cannot be "the predominant factor" in the drawing of election district lines.(7) This approach to racial group conflict in the political realm organizes constitutional inquiry around the motivations of those who control the redistricting process.
This brief Essay seeks to make one narrowly targeted doctrinal point: Whatever the merits of motive-based approaches to mediating group conflicts in other constitutional contexts, in the redistricting arena that approach will not be capable of sustaining constitutional doctrine in a coherent, administrable, or useful form. This is not due to general theoretical concerns about motive-based doctrines, but to pragmatic reasons peculiar to the redistricting context. If the Court's current project of imposing constitutional restraints on race and redistricting is to be given principled legal content, it will have to be through another approach. Toward the close of this Essay, I will suggest the most likely alternative.
With respect to general problems of group conflict and the Constitution, this Essay's discrete concerns might nonetheless suggest a few broader implications. At the most general level, I will argue that the Supreme Court's struggles stem from misguided efforts to assimilate race-conscious districting to the constitutional framework for other race-conscious government policies. The now reigning approach to policing racial redistricting, the motive-based "predominant factor" test, offers the allure of consistency with other areas of constitutional law. By importing Washington v. Davis(8) and City of Mobile v. Bolden(9) into redistricting, the Court has cast the Shaw doctrine as continuous with established Fourteenth and Fifteenth Amendment principles. But this portrait of continuity is an illusion. At least in the area of race, constitutional problems of group conflict cannot be approached effectively in universal terms. Contexts in which issues of race-conscious policy arise turn out to differ in pragmatic, but central, ways. Whatever the merits of more rigidly "consistent" approaches in other institutional arenas--approaches that argue for colorblindness or race-consciousness in all-or-nothing terms--within the legal system, contextual variations must be attended to if courts are to develop coherent, administrable legal doctrines.
Thus, whether or not the intent standard of Davis is appropriate for certain contexts, such as public employment, the effort to borrow this standard for redistricting is fundamentally flawed. I will stress three reasons that this is so, though others could be marshalled. First, an intent standard is not properly linked at the conceptual level to the nature of the constitutional harm that the Court's racial-redistricting cases recognize. The injuries Shaw makes actionable are expressive harms, as will be described later; such harms focus on the social meaning of, and social perceptions about, government action, rather than on individuated and more material harms to discrete individuals. Once the role of these expressive harms in Shaw is appreciated, the predominant motive test can be seen not to be a coherent approach to implementing the decision's underlying theory. Second, an intent standard emerges out of more conventional individual-rights adjudication contexts. But Shaw is not best understood as operating within an individual-rights model of the relevant harm. Third, in the redistricting arena, the Davis approach will be intractable at the practical level. Sensible doctrine in this area must recognize that carving states into election districts differs in essential ways from choosing one of two applicants for a particular job, or awarding a public construction contract to one of two competing firms, or granting a broadcasting license to one of two bidders. In particular, race and partisan politics are too compounded in redistricting to be separable through motive-based "predominant factor" tests. Whatever precision such tests might have elsewhere, in the redistricting context they can only dissolve into ritualistic, vaporous incantations. Inevitably, this approach will lead to disingenuous judicial decisions; courts simply are not likely to be able or willing to apply such a standard faithfully. Indeed, this evasion of artificial doctrinal formulas is already evident in the Supreme Court itself: The Court has begun to decide cases in ways that cannot be reconciled with a primary emphasis on ferreting out legislative intent.(10)
Doctrinal stumbling and confusion about race-conscious districting poisons politics and culture in particularly pathological ways. Under the best of circumstances, the drawing of election districts by politicians is nasty, brutish, and anything but short. Adding race and ethnicity makes the mix even more combustible. Unless the Court quickly brings more principled legal ordering to the framework of racial redistricting, political institutions will become the site for the most divisive racial and ethnic confrontations seen in many years. Already in the aftermath of the Court's recent decisions, several states have become too politically paralyzed to redistrict at all; instead, they have defaulted the task to federal courts.(11)
This Essay is directed primarily to courts struggling to implement the Shaw doctrine. The approach here also differs from what might be called "the ideological turn" that legal scholarship has taken in recent years.(12) Increasingly, legal scholarship has merged into fields like political theory and cultural critique as it has sought to tease out the general systems of beliefs, assumptions, and structures of values embedded within legal decisions. For some purposes, this work has been immensely valuable; yet it necessarily downplays characteristic qualities of legal decisionmaking and more internal styles of legal analysis. Rather than focusing on the fine-grained distinctions between cases and contexts that more conventional legal analysis stresses, for example, ideological critique tends to see cases as raising fundamental choices between competing, broad ideologies.(13) Rather than seeing legal issues as arising amid specific institutional constraints and within particular complexes of fact, ideological analyses tend to be framed in terms of clashes between competing frameworks of values, often conceived at high levels of abstraction. Because my aim is limited here to the judicial implementation of Shaw, this Essay is more in the nature of internal doctrinal critique. Thus I do not engage in the "fundamental" debate that has preoccupied much academic commentary on the decision: whether race-conscious districting, in the extreme geographic forms Shaw condemns, ought to be constitutional. Much of the response to Shaw has predictably, but unproductively, urged that it be overruled.(14) Yet with five cases now decided in the last four Terms, even dissenting Justices have recognized that "the Court seems settled in its conclusion that racial gerrymandering claims such as these may be pursued."(15) I take the principle of Shaw to be settled, at least for now, and for implementation purposes seek to understand the doctrine on its own terms.
Part I begins by explaining Shaw and then challenges prevalent mythologies concerning racial redistricting and the Voting Rights Act (VRA). I argue, for example, that certain familiar criticisms of Shaw misunderstand both the history of the VRA and the present context of redistricting. To address Shaw effectively requires understanding it as a specific response to distinct developments in the voting arena. Ironically, however, the specific means the Court invokes fail to recognize what is distinct about the logic of voting rights. Thus Part II seeks to demonstrate that the current "predominant motive" test will necessarily fail as a means of implementing the values Shaw is best understood to reflect. Finally, the Essay ends with suggestions on how the realities of the entanglement between race and politics in redistricting can be better recognized through an alternative approach that provides more principled guidance in this highly charged arena.
VOTING RIGHTS MYTHOLOGIES
Shaw and subsequent decisions hold that race-conscious election districting will be subject to strict...